ATRT comments by Leap of Faith Financial Services Inc. (July 14, 2010)

• To: atrt-questions-2010@xxxxxxxxx
• Subject: ATRT comments by Leap of Faith Financial Services Inc. (July 14, 2010)
• From: George Kirikos <gkirikos@xxxxxxxxx>
• Date: Wed, 14 Jul 2010 20:57:50 -0700 (PDT)

Comments re: Questions to the Community on Accountability and Transparency 
within ICANN
By: George Kirikos
Company: Leap of Faith Financial Services Inc.
Date: July 14, 2010

Thank you for the opportunity to comment.

To preface our remarks, as we've noted before, there are far too many open 
comment periods at ICANN at present (20 current ones at last count). They need 
to be prioritized, spaced out better, and the comment periods should be longer 
(e.g. CIRA, the .ca registry operator, has a 100 day comment period for a 
current issue).

On to the questions (I'll attempt to be as brief as possible, given the 
numerous 

public comment periods; it's my hope more detailed discussions can take place 
in 

future comment periods):

1. As a domain name registrant, it's clear ICANN is not accountable to this 
important stakeholder. It would require a separate comment period to enumerate 
*ALL* the instances where ICANN has been unaccountable (perhaps some separate 
process can be done on a wiki or something), however let me limit it to 7, in 
no particular order:

a) the excessive compensation and wasteful spending by ICANN. ICANN purports to 
be a "non-profit", but uses for-profit comparables when setting compensation. 
I've discussed this in the past, for example at:

http://www.circleid.com/posts/20090105_icann_for_profit_companies_comparables/
http://forum.icann.org/lists/op-budget-fy2011/msg00013.html 

Domain registrants have no say in how their funds are being spent, and 
ultimately domain registrants fund ICANN (registrars or registries simply 
*collect* funds from registrants).

b) The VeriSign .com settlement, and "presumptive renewal". ICANN has entered 
into agreements with VeriSign and other registry operators (e.g. PIR) that do 
not reflect the public interest. There should be a competitive tender process 
which would result in far lower fees for registrants/consumers. This continues 
with new gTLDs (which the public does not generally support), and where even 
price caps do not exist to protect the public from anti-competitive price 
gouging by registry operators.

c) ICANN eliminated elected Board members (e.g. Karl Auerbach's seat). 
Registrants are "taxed", but receive no representation. There is no ability to 
"recall" bad board members, either.

d) ICANN continues to allow registry operators to promise one thing, but then 
change the terms of their contracts through amendments later (e.g. .asia/.pro 
asking 

and getting fee reductions for themselves, and the recent .jobs proposal to 
amend their contract 
-- http://www.collegerecruiter.com/weblog/2010/06/open_letter_fro.php )


e) ICANN continues to refuse to bring UDRP providers (e.g. WIPO and NAF) under 
contract!  This despite:

http://www.circleid.com/posts/naf_caught_revising_past_udrp_decisions/
http://forum.icann.org/lists/cac-prop-supp-rules/
http://forum.icann.org/lists/cac-prop-supp-rules/msg00011.html

and many other complaints.

f) The process behind the IRT was an abomination:

http://forum.icann.org/lists/irt-final-report/msg00000.html

having a self-selected group get ICANN's "blessing" as well as funding to 
create 

a widely ridiculed report.

g) The entire new gTLD process, where there's no consensus from the public that 
they should be established, yet ICANN staff are pushing things through, in 
order 

to have a "larger" organization (and presumably even higher staff compensation, 
etc.). Staff in particular also misuse the word "implementation" to avoid going 
through the policymaking body of the GNSO, see:

http://gnso.icann.org/mailing-lists/archives/ga-200709/msg02981.html

Policies *need* to go through the GNSO. However, ICANN Staff are describing 
*all* the new gTLD stuff as *implementation*, even though they are definitely  
creating new policy. 

One can go on and on, but perhaps that's best left to another comment period.

2. Simple answer: No.

The Ombudsman needs to be reviewed, seriously. See for example:

http://gnso.icann.org/mailing-lists/archives/ga-200709/msg03949.html

where the Ombudsman breached the confidentiality of an ongoing complaint, and 
then censored/removed the relevant blog entries (which I archived). Also, the 
"civility" campaign is an attempt to stifle free speech.

Ultimately, the public needs to be able to hold ICANN directly accountable 
through the court system when they make a bad decision. This means eliminating 
the "no third-party beneficiaries" clauses from various agreements (e.g. 
section 

8.5 of the .com agreement with VeriSign). There should also be a Registrants 
Charter of Rights, see:

http://forum.icann.org/lists/raa-improvements2010/msg00000.html

to ensure accountability. That charter would be able to be enforced in court, 
and would trump specific policies (i.e. if there was a conflict, the Charter of 
Rights would reign supreme).

3. No, they're not transparent at all. Just a few examples:

a) ICANN refuses to provide complete transcripts and oral recordings of all 
Board meetings, even after being challenged by Mike Palage on this issue:

http://www.icann.org/en/announcements/announcement-19apr10-en.htm
http://forum.icann.org/lists/reconsideration-request-10-1/msg00000.html

and despite the testimony before the US government in 2009. Board mailing lists 
should also be made public.

b) ICANN Board members go on private (and paid for by registrants!) "retreats" 
to decide important issues in private (as well as wasting the funds of 
registrants).

c) ICANN negotiates contracts (like the .com VeriSign agreement/settlement) in 
secret behind closed doors, without involving the public who is affected by it.

4. ICANN's only commitment is to itself, not to the public interest. As 
mentioned 

above, just a few examples:

a) The VeriSign .com agreement (7% price increases, presumptive renewal), 
although the PIR agreements (10% increases) are equally bad. There should be 
tender processes, as discussed numerous times. 

b) The excessive compensation discussed above. ICANN needs to be watching its 
spending. It has grown from a budget of under $10 million to the $60 million 
range.

c) ICANN continues to speculate with the "emergency reserve fund":

http://www.circleid.com/posts/20090203_icann_blows_46_million_stock_market/

which is managed as though it's an endowment, instead of an emergency fund.

5. The Nominating Committee should be disbanded. There should be elections 
instead, 

for short-fixed terms (e.g. annual or every 2 years). Appeals to the court 
system need to be allowed.

6. The GAC has a very important role. However, in many cases they are civil 
servants that do not reflect the public interest at all, and indeed have been 
"captured" to some extent, because they enjoy the party-atmosphere around ICANN 
events, and want to see it continue. While in theory the GAC *might* partially 
reflect the public interest, often it's not the case in reality. More needs to 
be done to improve the accountability and transparency of the GAC too.

7. Best answered by GAC for now.

8. As someone who does his best to comment on important issues, the process 
leaves much to be desired:

a) Far too many simultaneous issues, which no prioritization taking place. 
ICANN 
needs to do less, and focus on a narrow mission. At some point, there needs to 
be a "steady state"
b) Comment periods need to be longer
c) All the .doc and PDF attachments in comments are a huge security risk. They 
should be limited to only pure text (ASCII or Unicode).
d) There should be the ability to have interactive comments (e.g. setup 
vBulletin or other forum software, like other popular discussion forums)

9. No. There's often absolutely zero economic analysis of costs and benefits, 
despite being challenged (e.g. I specifically asked about the economic costs of 
the VeriSign 7% annual price increases, etc., and the ICANN lawyers didn't 
provide a satisfactory answer). The AOC is supposed to compel that, yet this 
continues (e.g. the costs and benefits of new TLDs, the costs and benefits of 
various registry-requested changes, e.g. lowering .pro/.asia fees, etc.)

The same goes for compensation. I specifically asked ICANN in Brussels to list 
*any* non-profit organization of comparable size that had as many staff earning 
$200K+ per year. They couldn't. There should be a systematic review of 
questions 
asked of ICANN during public meetings, etc. --- much of the time they don't 
even 
attempt an answer at all!

10. ICANN is almost universally loathed, except by the "insiders" who are able 
to get favours from it. One can replay the testimony of Paul Twomey in 2009 
before congress, for example. Examples already provided above, like the .com 
settlement with VeriSign, or the acceptance of .xxx (which should be rejected, 
as that's what the public overwhelmingly wants).

11. The process has been captured, for the most part, by the contracted parties 
(registrars and registries). New TLDs, for example, as those two constituencies 
have excessive voting power relative to the public. This resulted in the GNSO 
supporting new TLDs, despite the public not wanting them. As another example, 
the IRT debacle.

Apologies for being brief --- just too many ICANN comment periods right now! 
Hopefully we'll get another opportunity to have more detailed input in the 
future. The ATRT might want to go back and review public comments in general, 
on 
all issues, rather than just look at the comments in this one comment period. 
There have been a *lot* of complaints about ICANN, and this single comment 
period is not going to be able to capture them all....the team needs to go back 
and look actively for them by reading the archives of past public comment 
periods.

Sincerely,

George Kirikos
President
Leap of Faith Financial Services Inc.
http://www.leap.com/